Category: Law School (Scholarship)

13

Must District Judges Give Reasons?

gavel.jpgJonathan Adler highlights this astonishing Ninth Circuit opinion on the alleged misconduct of now-embattled District Judge Manuel Real. Some interesting facets of the case (previously blogged about here, here, and elsewhere). First, dissents matter. It is more than tempting to attribute the current push to impeach Judge Real to Judge Kozinski’s harsh dissent from the panel’s order exonerating him on the misconduct charge. Second, the case raises a neat issue which relates to what I’ve been writing this summer. While the overall facts of the case are well worth reading in the original, if you’ve ten or twenty minutes, I want to focus briefly on part of Judge Kozinski’s charge against Real: that he failed to explain the reasoning for a controversial order.

The basic story is that Judge Real withdrew the petition in a pending bankruptcy case and stayed a state-court judgement evicting a woman who was appearing before his court in a criminal matter. Both orders were entered apparently sua sponte, or at least without hearing the evicting party’s arguments. According to Kozinski, Judge Real “gave no reasons, cited no authority, made no reference to a motion or other petition, imposed no bond, balanced no equities. The two orders [the withdraw and stay] were a raw exercise of judicial power…” In a subsequent hearing, Kozinski continued, “we find the following unilluminating exchange”:

The Court: Defendants’ motion to dismiss is denied, and the motion for lifting of the stay is denied . . .”

Attorney for Evicting Party: May I ask the reasons, your Honor?

The Court: Just because I said it, Counsel.

Kozinski wrote:

I could stop right here and have no trouble concluding that the judge committed misconduct. [Not only was there a failure of the adversary process . . . but also] a statement of reasons for the decision, reliance on legal authority. These niceties of orderly procedure are not designed merely to ensure fairness to the litigants and a correct application of the law . . . they lend legitimacy to the judicial process by ensuring that judicial action is-and is seen to be-based on law, not the judge’s caprice . . . [And later, Kozinski exclaims] Throughout these lengthy proceedings, the judge has offered nothing at all to justify his actions-not a case, not a statute, not a bankruptcy treatise, not a law review article, not a student note, not even a blawg. [DH: Check out the order of authority!]

So here’s the issue: in the ordinary case, to what extent are judges required to explain themselves?

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4

Student Notes R.I.P. or Survive on SSRN?

poor little sue 4.JPG

A student asked me what happens to notes that are not accepted for publication on a law review. When I mentioned that they may be submitted to other journals but often they are not published, she seemed a little down about the work not being seen.

As I thought about the topic, I came to a few questions. Does anyone know whether students are putting notes on SSRN or assuming some are posting how many do so? Is there a policy about who can post? Furthermore, is it fair to ask whether they should be “allowed”, as it were, to put work on SSRN? On one hand, the amount of information (some good and some perhaps not so good) would increase but I could see arguments about too much noise or information overload being raised. Then again, one already has to wade through volumes of information using search strings and the like so perhaps adding more narrow but hopefully well done pieces to that pool will allow scholars to focus on large implications of their research and use the increased access to notes as a way to more efficiently see what work has been done on a particular topic that is a footnote or small part of the scholar’s work. So although I would suggest one should be careful using such information because it has not been screened, I think accuracy and quality issues are always in play and a researcher must continually use his or her own judgment regarding how much to trust any piece.

So what do people think? Should unaccepted notes R.I.P. or should they survive on SSRN?

9

If Not Scholarship, What?

Bill Henderson has a tremendous post up on the Conglomerate which follows up on Dan’s post of earlier this week on the relationship between time and US News reputation ranking scores. As Bill and Dan have now shown, a law school’s academic reputation score is pretty sticky: even with increased, but varied, emphasis on scholarship in the last decade, few schools have moved much up or down. I guess this isn’t totally surprising, given the difficulty in transforming a faculty, the relative weakness of academic institutions at marketing, etc. But it is sobering.

As Bill asks: “Why does every law school strategic plan, formed in the crucible of USNWR rankings angst, emphasize a plan of more and better scholarship when, empirically, such a strategy is unlikely to produce substantial improvements relative to peer schools?”

This all raises, at least for me, two possibly interrelated questions.

1. Is this just an artifact of known US News data collection problems? That is, assume that Leiter’s rankings went back before 1999: would the resulting string evidence non-random movement of multiple schools over time? Will using less sophisticated, but very objective, systems like the SSRN top school ranking produce data that rewards and reflects pro-scholarship expenditures like an SSRN series, workshops, chaired lateral hiring, etc?

2. As I explored here, it is interesting to think about the application of Moneyball to law school hiring. Bill and Dan’s posts suggest that the comparative advantage of selecting for productive scholars as a rankings boost is waning. [Believe me, I don’t mean to suggest that this is nearly the only reason to select for scholarship, just a reason that rational schools might care about.] Billy Beane himself has remarked that the irrationalities he exploited in his early career (overvaluing the five tools, undervaluing walks and HRs) have largely been washed away, and he is finding it harder to exploit new advantages against well-managed peer teams. As I understand it, the new smart money in baseball is paying for defense and speed. I know this because the Phillies are paying for power and David Bell.

Are law schools in the same situation? And, if so, what should the smart money be spending cash on? Employment? Marketing? Facilities? Remember: the goal of this spending is to get as much relative peer-to-peer growth for your buck as possible. So, pretend you are a law school dean. What is in your next budget?

1

The E-Print Experiment

idtheft4.jpgA short while ago, I blogged about an experiment I was planning — to switch from mailing out reprints of my recently-published papers to sending out emails offering a variety of ways to obtain the reprint (electronic copy via email attachment, SSRN download, or hard copy reprint via snail mail). I decided to go ahead and try the experiment, and many folks asked me to report back the results.

I sent out the following email:

I’m writing to distribute a final reprint of my recently-published essay, Fourth Amendment Codification and Professor Kerr’s Misguided Call for Judicial Deference, 74 Fordham L. Rev. 747 (2005). The essay critiques Professor Orin Kerr’s argument that legislatures are superior to courts in creating the rules governing law enforcement and new technologies. Kerr recommends a deferential judicial approach to the Fourth Amendment when new technologies are involved. I contend that Kerr is wrong.

I’m trying a new experiment with reprints. I used to send out a mass mailing of reprints, a system that was expensive, not environment-friendly, and not very efficient, as I bet that only a percentage of recipients were interested in reading the reprint. Therefore, I’m trying out a new system, one that is designed so that copies of the reprint go only to those interested in reading it.

If you’re interested in reading a copy of my essay, just reply to this email and let me know which version you want:

1. Electronic Copy: I have an electronic PDF copy of the final published version, which prints out looking identical to how the piece looks in its final published format. I’d be happy to send you this version as an email attachment. Or you can download a copy for free at this link: http://ssrn.com/abstract=786266

2. Snail Mail Reprint: I have ordered a bunch of reprints for those who prefer them, and I’d be happy to send you one if you want.

If you prefer not to receive emails from me about my reprints in the future, just send me an email asking to be removed from the list. I promise that my emails will not be very frequent, as I can only publish so many papers in any one year!

Since my reprint list has been growing over the years — and since I could distribute my paper without incurring great expenses for my law school — I sent the email to approximately 350 people.

The result?

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2

More on Blogs as Scholarship

bloggership1a.jpgRecently, I blogged about a National Law Journal article about law blogs and scholarship. Doug Berman points out that blogs and blog posts are even being cited by judicial opinions. Indeed, Berman’s blog was recently cited by the Ohio Supreme Court, and in the past it has even been cited by the U.S. Supreme Court.

Mike at Crime & Federalism observes:

Scholarship is something that moves our legal knowledge forward. If x-article or blog post helps us understand something we hadn’t understood, then it’s scholarly. . . .

Anyhow, I’d love to hear those who disapprove of blogs to explain what separates Doug Berman’s blog from his casebook or a sentencing treatise. If Orin Kerr writes a lengthy entry about the PATRIOT Act, is it not scholarly because he publishes it online?

Larry Ribstein observes:

[S]ome blogs have a lot to do with scholarship in the sense of importantly contributing to the process. My blog, for example, conveys scholarship-relevant information, and I learn the same from other blogs. I also use my blog to germinate and develop ideas that eventually appear in polished scholarship.

Rick Garnett at PrawfsBlawg notes:

Look, of course it is true that most blogging looks a lot more like “chit chat” than like “scholarship.” But isn’t there a pretty big chunk of middle ground here? My sense is that — at least in the law-blogger world — a fair bit of what gets blogged and blogged about does “have [something] to do with scholarship”: People blog about what others are writing about, about what they are writing about, about what they plan to write about, or what they tried to write about. No one thinks that blogging could or should take the place of scholarship. But it seems quite a stretch to suggest that law-blogging does not have — unlike, e.g., enthusiastic and engaged conversations around the lunch table, or during a workship? — anything at all to contribute to the scholarly enterprise.

And here’s a link to the lineup at Paul Caron’s conference on blogging at Harvard this April.

0

Compilation of Posts on Academic Blogging

Ian Best, a 3L at Ohio State University Law School, has compiled a very comprehensive and helpful repository of blog posts about academic blogging.

An interesting fact about Ian’s blog — he writes:

I’m getting law school credit for blogging. And as far as I know, I’m the first law student to do so.

Maybe I should ask my dean for course relief for blogging. Hmmm. . . .

11

Going Digital: The Future of Reprints?

reprints1.jpgOne of the great things about law review articles is that you can order a batch of reprints — separately-bound copies of your article that you can send out to a list of your colleagues. I have a large and growing database of various professors, policymakers, journalists, and others who receive copies of my articles — a fact that is not without some irony, since many of these people are in the information privacy law field, and I have written extensively on the problems posed by databases. Thus, ironically, I maintain a database with one of the most extensive collections of people who criticize databases.

It is common practice among law professors to send out reprints widely, as this is a way to present one’s scholarship to others in a highly-readable format. But reprints come at a considerable cost. Recently, I got the price quote for a reprint order for a soon-to-be-published article. Under the pricing scheme, I get 40 free reprints, but that’s not nearly enough for my database, which includes hundreds of people. For 200 extra reprints, it would cost about $744 and for 400 extra it would cost $1059. Wow! I nearly had a heart attack . . . and I’m not even the one paying the bill — my school picks up the tab. Anyway, if I handed a bill for over $1000 to my dean, the keys to my office might not work the next day. Plus, there’s the cost of postage, envelopes, and stationary.

So here’s my idea. I’m thinking of moving toward a system of electronic reprints. I could send out a PDF version of the final article in an email to everybody in my database. In other words, I’d shift from being a junk mailer to a spammer. . . .

In my email, I’d include the text of the letter I would have sent to accompany the reprint, attach the article in PDF format, and possibly include a link to the final version of the paper on SSRN. I’d still order some reprints — about 50 to 100 — and offer to send hard copies of the reprints to anybody who requested them. My guess is that I’d get a few people requesting the actual reprint, but most people interested in reading the article would just print it out from the attached digital version.

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13

Does Scholarly Writing Have to Be Tedious?

book5a.jpgOver at the new and very engaging blog, LawCulture, Rosa Brooks writes:

As a junior professor, I dutifully churned out law review articles to fill my tenure file. Some of those articles, I think, may even have contained a few good ideas and a few good lines, but all of them suffered, to one degree or another, from the contraints of the genre. Worse yet, I’m fairly sure that practically no one outside my tenure committee and my mother has actually read the damn things (and I have my doubts about my mom). Not that this makes me unusual: the vast majority of law review articles are read by few people, and cited by even fewer. So… what’s it all for?

Now, since I’m devoutly hoping my colleagues won’t actually revoke that tenure vote, I’m awfully tempted to echo Rodell and say goodbye to law reviews. From now on: books, absolutely. Magazine and newspaper articles? Sure. Blogs? We’re trying. Even, perhaps, the occasional law review symposium piece or essay, since those are fairly harmless. But as for those ponderous, still-much-too-long, ludicrously over-footnoted things we call Articles, with that portentously capitalized “A”? No, no, no.

No more going through perfectly good prose and inserting pointless qualifiers and parentheticals; no more searching for vaguely on point articles and cases to fill out footnotes; no more going through the ludicrous and humiliation rituals of submitting pieces to law reviews then playing the expedited review/trading up game.

Over at PrawfsBlawg, Paul Horwitz responds by observing:

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12

Blogging Without Tenure

lawprofessor5.jpgAt a panel at the AALS conference this year entitled Blogging: Scholarship or Distraction?, Randy Barnett suggested that blogging may not be wise for untenured legal scholars. [Paul Caron of TaxProf Blog (and overlord of the Caron Law Professor Blogging Empire) has the complete highlights of the panel here.]

Is blogging advisable for untenured scholars? I bet that the answer differs in each specific discipline, and I’ll focus my observations on the law. I believe that blogging can be great for untenured legal scholars, but it must be done in the right way.

I. BENEFITS

Why is blogging good for the younger legal scholar?

1. Exposure and Name-Recognition. Blogging brings a level of exposure that junior scholars often do not achieve until much later on in their careers. More people will get exposed to their ideas, read their work, and recognize their name. It often takes years of networking and publishing to develop name recognition in legal academia. Blogging provides a head start.

2. Symposium Invitations. When law reviews or professors are planning symposia, they often brainstorm about whom to invite, and those who most readily come to mind often wind up on the list of presenters. Junior scholar bloggers are at an advantage since there names are more likely to be known.

3. Exposure Beyond One’s Field. Blogging enables scholars to get exposure outside of their fields. There are many scholars whose work I generally won’t be familiar with because I’m not researching or writing in their area. Unless those scholars are particularly well-known, I won’t be too familiar with them. But I may know about them from the blogosphere. When somebody asks me who writes about corporate law, a field I know little about, I immediately think of the folks at the Conglomerate or of Dave Hoffman or Nate Oman here at Concurring Opinions.

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10

Law Review Citations and Law School Rankings

columbia_law_review.jpgThere’s no shortage of writing on law reviews or law school rankings, to say the least. So why not combine the two?

Questions about law review ranking abound. How does one compare offers from journals at relatively equal schools? Is it better to publish with a journal that is more frequently cited or with one at a higher ranked law school? Is it better to publish with a main law journal at a top 40ish law school or the secondary at a top 10 law school? Questions about law school rankings abound as well, particularly for schools outside of the top 30 or so. (Or so it seems to me.)

I’m partial to citation studies as a way of judging quality. I know that citations have lots of problems as a way of ranking journals (or individual authors). However, I like the objectivity citation studies provide. And so I’m partial to the Washington and Lee Law Library’s website, which provides comprehensive data on citations to hundreds of law journals by other journals and by courts. I’ve found it useful in trying to draw some comparisons between journals. Other people often draw comparisons between journals by looking to the US News ranking of the journal’s school.

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